Prosecutors clash with Tsarnaev defense over death penalty protocol
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BOSTON, September 23 (RAPSI, Ingrid Burke) - In anticipation of Tuesday’s status conference, US prosecutors have challenged a request by the defense team for Boston Marathon bombing suspect Dzohkhar Tsarnaev that the court address issues that have arisen in light of the Attorney General’s pending decision on whether to pursue the death penalty, according to a series of recent court filings.
The defense had requested in a Joint Status Report filed last week that the court “address issues relating to the timing and procedure for the death penalty protocol at the initial status hearing.” In turn, the prosecution called shenanigans, stating in a separate filing, “[t]o the extent the defense requests that the Court set a deadline for anything other than the filing of [the formal notice by the government that the death penalty may be justified], the request is improper.”
The prosecution document explained that in accordance with the Attorney General’s Death Penalty Protocol (DPP), the final decision on whether or not to pursue the death penalty rests with the Attorney General himself, who will render his decision after considering information confidentially submitted by the relevant US Attorney. Under the DPP, defense counsel must be given a reasonable opportunity to provide input on the decision.
The same document went on to assert that the Tsarnaev defense team was asked on July 26 to provide the US attorney with its input on the government’s potential pursuit of the death penalty against their client by August 23, 2013. The defense team then asked for more time, according to the document. The government then responded with news that the US Attorney would submit his recommendation on the matter to the Attorney General on October 31, and asked the defense team to provide its submissions by that point.
According to the document, “This deadline – i.e. approximately six months after the events giving rise to the indictment – provides the defense a ‘reasonable opportunity’ to present its input while also satisfying the U.S. Attorney’s responsibility to make its submission to the Attorney General “as expeditiously as possible.”
For the court’s reference, in requesting its consideration of the death penalty protocol, the defense team attached a 2008 memo outlining a new (at the time) Criminal Justice Act (CJA) Guideline for the establishment of scheduling requirements in federal cases potentially involving the death penalty. The guideline was approved by the Judicial Conference of the United States’ (JCUS) Committee on Defender Services, and was developed jointly by US Department of Justice (DOJ) staff and defender services representatives, according to the attached memo.
The JCUS is a judicial organization composed of the Chief Justice of the US Supreme Court, the highest-ranking judges from the federal circuits across the country, the Chief Judge of the Court of International Trade, and district judges from each regional judicial circuit. According to its website, the fundamental purpose of the JCUS is, “to make policy with regard to the administration of the U.S. courts.”
According to the guidelines laid out in the 2008 memo, “Within a reasonable period of time after appointment of counsel… and only after consultation with counsel for the Government and for the defendant… the court should establish a schedule for resolution of whether the Government will seek the death penalty.”
According to the CJA Guideline, the schedule should include the following items: a date for submissions by the defense to the US Attorney asserting any reasons why the death penalty should not be sought against the defendant; a date for submissions by the US Attorney to the relevant DOJ officials of a recommendation and supporting evidence relating to whether or not the death penalty should be sought; and a date for the conduct of certain formalities relating to the DOJ’s decision either to pursue the death penalty or to drop it.
The guidelines note that the schedule should carry a certain degree of flexibility, and that dates should be open to extension for good cause. Furthermore, the dates should provide “reasonable time” for counsel on both sides to carry out their respective duties. Notably, the guidelines point out that in terms of calculating time frames in potential death penalty cases, due regard should be paid to such factors as factual complexity, the status of any ongoing investigation, the anticipated or actual progress of discovery, potential plea negotiations, and other such concerns.
Prosecutors filed a document Friday relating to timing requirements under the US law on the provision of notice by the government of plans to pursue the death penalty.
Citing US case law, the prosecution document explains that the CJA Guideline “confers no authority on this Court to set deadlines for internal Department of Justice deliberative procedures. As the [referenced case law] notes, a defendant has no rights under the CJA Guidelines because they are equally as nonbinding as the DPP. The Judicial Conference, which formulates the CJA Guidelines, publishes only suggestions and recommendations. The Guidelines thus cannot empower this Court to issue [a scheduling order] for the different phases of the Attorney General’s decision making process. In any event, the government’s own schedule for making the death-penalty authorization decision in this case is fully in keeping with the purpose of CJA Guideline 6.04, which is to control litigation costs by speeding up, rather than slowing down, the DOJ's process.” [Internal quotes and case citations omitted.]
The prosecution document further asserts that for the court to decide which information the Attorney General should consider and at what intervals in rendering his decision on whether or not to pursue the death penalty would constitute a violation of the Separation of Powers doctrine, under which the executive, legislative, and judicial branches of the US government share authority in different but equal capacities.
In this connection, the prosecution document urges: “Whether to seek the death penalty in a given case is quintessentially a matter of prosecutorial discretion. That discretion includes what information to consider and when to consider it in making the decision.”
Another point of contention raised in the Joint Status Report was that of the conflicting conclusions drawn between the defense and prosecution with regard to whether or not the automatic discovery process is complete.
With regard to automatic discovery, a guide to the local rules of the US District Court for the District of Massachusetts explains that in felony cases, “all discoverable material and information in the possession, custody, or control of the government and the defendant, the existence of which is known, or by the exercise of due diligence may become known, to the attorneys for those parties, must be disclosed to the opposing party without formal motion practice,” unless the defendant waives his right to such.
The Joint Status Report notes that in the view of the government, automatic discovery is complete, whereas the defense – still in the process of reviewing the discovery – believes that it is incomplete.
The parties proposed scheduling an Interim Status Conference for November 12.
At about 2:49pm on April 15, two explosions occurred near the finish line of the Boston Marathon. IEDs devised from pressure cookers, low explosive powder, shrapnel, adhesive, and other materials were hidden in backpacks that were then placed near metal barricades in areas packed with hundreds of spectators.
According to a related indictment, “Each explosion killed at least one person, maimed, burned and wounded scores of others, and damaged public and private property, including the streets, sidewalk, barriers, and property owned by people and businesses in the locations where the explosions occurred.”
The following four days were consumed by a dramatic and at times extremely violent manhunt for the suspects, who were identified by name on April 19 as Dzhokhar (19) and his brother Tamerlan Tsarnaev (26). The manhunt entailed the presence of thousands of law enforcement personnel from local, state, and federal agencies, and resulted in a veritable lockdown through parts of the greater Boston area.
Tamerlan was killed during a police shootout, and Dzhokhar was arrested on the evening of April 19 after having been discovered hiding in a dry-docked boat in the Boston suburb of Watertown.
He was then charged in a criminal complaint dated April 21 with the use of a weapon of mass destruction and malicious destruction of property resulting in death.
Then on June 27, a federal grand jury returned a 30-count indictment against Dhzokhar. The charges include the use of a weapon of mass destruction resulting in death and conspiracy and the bombing of a place of public use resulting in death and conspiracy among others.
According to an accompanying FBI press release, seventeen of these charges carry sentences of up to life imprisonment or the death penalty, and the rest carry sentences of life imprisonment or imprisonment for a fixed period.
At an arraignment hearing on July 10, Dzhokhar pleaded not guilty to all charges pending against him.